My modest proposal to make petty regulation unenforceable

Charles Murray is a political scientist, W H Brady scholar at the American Enterprise Institute and Templeton leadership fellow at Atlas Network. His new book is By The People: Rebuilding Liberty Without Permission (Crown Forum).

Charles Murray

Small businesses in the UK are impeded from providing goods and services by red tape (Source: Getty)

The people of the United Kingdom, United States, and the European Union are all beset by armies of bureaucrats enforcing stupid, pointless rules. By “stupid, pointless rules,” I don’t mean regulations that prevent smokestacks from belching noxious smoke or ensure that coal mine tunnels are safe, but thousands of regulations that are petty in themselves or arbitrarily enforced.

Examples? I have countless ones from the US. Perhaps they will remind you of ones in Britain. For “petty,” how about a regulation stipulating the way in which certain flower bulbs must be described to customers? For “arbitrarily enforced,” how about requiring a small factory to spend thousands of dollars to replace railings on stairwells that were 40 inches high instead of the stipulated 42 inches? One of my favourites is the bartender who was fined $3,000 for failing to examine a customer’s ID to determine if he was old enough to buy a drink. The customer in question was her father.

These are not isolated incidents. People who run small businesses can tell you of the many ways in which they are impeded from providing their customers with the goods or services they want to provide. Doctors, engineers, architects, lawyers, and skilled workers of all sorts can tell you about the ways in which they are impeded in practising their professions and crafts as well as they might. Sometimes the problem consists of the time and money they must spend complying with petty regulations. Too often the regulation itself is badly framed or counterproductive, concocted by people who have no experience with conditions on the ground.

It isn’t just freedom to practise our vocations that is being gutted. Whether we are trying to raise our children, be good stewards of our property, or cooperate with our neighbours to solve local problems, the bureaucrats think they know better. And when the targets of the regulatory state say they’ve had enough, that they will fight it in court, the bureaucrats can – and do – say to them, “Try that, and we’ll put you out of business.”

In the United States, taking regulations off the books through the political process is unrealistic – the regulatory agencies have too much statutory independence. But regulators everywhere, including Britain, have a common vulnerability: they can’t possibly enforce the thousands of rules that apply to every business and every piece of property. Their inspection and prosecutorial capacity relative to their mandate is pathetically small. The regulatory state is the Wizard of Oz: fearsome when its booming voice is directed against any single target but, when the curtain is pulled aside, revealed as impotent to enforce its thousands of rules against widespread refusal to comply.

And so my modest proposal: let’s withhold that compliance through systematic civil disobedience. Not for all regulations, but for the stupid and pointless ones that have no place in a free society.

The process for deciding which regulations are stupid and pointless will be necessarily complex, but the operational test is this: if the government prosecutes someone for ignoring a designated regulation even though no harm has occurred, ordinary citizens who hear about the prosecution will be overwhelmingly on the side of the defendant. Let’s just ignore those regulations and go about our lives as if they didn’t exist.

The risk in doing so, of course, is that a regulatory agency will find out what you’re doing and come after you. But there’s a way around that as well: let’s treat government as an insurable hazard, like floods or locusts. People don’t build flood-proof houses; they buy house insurance. In the case of the regulatory state, let’s buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defence against the government’s allegation even if we are technically guilty.

The objective is to create a disincentive for overzealous regulators. Now, writing up a violation has no downside. Everybody knuckles under without a fight. If bureaucrats know that pursuing a violation will mean hours of extra work and maybe bad publicity, for a violation that caused no harm to anything or anyone, they will have to ask themselves whether it’s worth it.

The legal defence funds that underwrite systematic civil disobedience could be philanthropic or organised by professional associations. Perhaps they would even be profitable undertakings for insurance companies. This is not the place to elaborate on the details. My core message is simple: it is possible for we the people to pull aside the curtain, expose the Wizard’s impotence, and reclaim some of our freedom to live our lives as we see fit.

City A.M.'s opinion pages are a place for thought-provoking views and debate. These views are not necessarily shared by City A.M.